Sunstein Analyzes Alito's Dissents

On the Contrary

Cass R. Sunstein

The Washington Post

November 1, 2005

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

Many of Alito's dissents involve civil rights. Consider some examples:

* A woman and her 10-year-old child sued police officers for engaging in a body search in violation of their constitutional rights. The court allowed the case to go forward. Alito dissented, arguing that the police had qualified immunity.

* Prisoners in long-term segregation units were banned from receiving newspapers or magazines from either the prison library or the publisher. The majority struck down the ban as a violation of the First Amendment. Alito dissented, finding the ban to be within the prison's legal authority.

* A trial court had refused to allow an employee who complained of racial discrimination to cross-examine a witness who had given the employee an unfavorable performance evaluation. The court ordered that the cross-examination must be permitted. Alito argued in favor of the trial court's rulings.

* An employee complained that racial discrimination accounted for the fact that she had not been promoted. The court ruled that she had raised serious issues of fact, justifying a jury judgment. Alito dissented, complaining of "an unwarranted extension of the antidiscrimination laws."

* A local zoning board imposed land-use restrictions on a Hindu temple. The court ruled that the restrictions were arbitrary and unlawful. Alito concluded that they were legitimate.

* Two parents brought a wrongful death action against a college, arguing that the risk to their son from an athletic event was foreseeable. Alito concluded that the facts on which the parents relied were "insufficient."

Several of Alito's dissents involve important federal statutes. In a case involving workers' rights, the court ruled that a coal processing site was a "mine" under federal law and therefore subject to the protection of the agency that regulated conditions at coal mines; Alito disagreed. In another case involving workers, a majority of the court ruled that certain reporters working for small community newspapers were entitled to the protections of the Fair Labor Standards Act. Alito dissented.

When the court ruled in favor of a Chinese citizen's claim for asylum on the grounds that he would be prosecuted under China's state security law, Alito accepted the government's view that the claim was not a valid basis for asylum. In another immigration case, the court reversed a government agency that failed to consider favorable factors when denying a request for relief from deportation. Alito dissented.

A number of Alito's dissents involve criminal defendants. When a majority of the court found a violation of the right to a speedy trial, he dissented. So, too, when the majority ruled that a district court had the authority to reduce a convict's sentence under the sentencing guidelines. So, too, when the majority ruled that habeas corpus relief was constitutionally required when the state had not met its burden of proving the defendant's specific intent beyond a reasonable doubt.

In a particularly important case, the court ruled that Congress has power, under the commerce clause, to ban the possession of machine guns. Alito dissented, emphasizing our "system of constitutional federalism."

It is important not to misread this evidence. Alito sits on a relatively liberal court, and hence his dissents are sometimes from relatively liberal rulings. None of Alito's opinions is reckless or irresponsible or even especially far-reaching. His disagreement is unfailingly respectful. His dissents are lawyerly rather than bombastic. He does not berate his colleagues. Alito does not place political ideology in the forefront.

Nor has he proclaimed an ambitious or controversial theory of interpretation. He avoids abstractions. He has not endorsed the view, associated with Justices Antonin Scalia and Clarence Thomas, that the Constitution should be interpreted to fit with the "original understanding" of those who ratified it. Several of his opinions insist on careful attention to the governing legal texts, but that approach is perfectly legitimate, to say the least.

Nonetheless, it is possible to learn a lot by seeing where a judge dissents from his colleagues. On issues that divide people along political lines, he has rarely been more liberal than his colleagues. But on numerous occasions, he has been more conservative.

The writer is a professor of law and political science at the University of Chicago and the author of Radicals in Robes.